Tuesday, May 14, 2013

On private policy

Last month, I wrote about the Sask Party's choice to redefine "privacy" to apply to corporations under Saskatchewan's securities legislation:

Until now, privacy has been recognized under Canadian law as being an
individual right. As Justice La Forest wrote, "An expression of an
individual's unique personality or personhood, privacy is grounded on
physical and moral autonomy - the freedom to engage in one's own
thoughts, actions and decisions..." These core concepts - an
individual's unique personality, physical and moral autonomy, and
freedom related to personal thoughts and actions - have no place
whatsoever in discussing corporate interests.
...
(A) redefinition of privacy to benefit corporations would have
consequences that might prove antithetical to a libertarian viewpoint.
If a right intended to protect individuals from corporate and state
intrusion gets turned on its head, there's no telling what individual
interests might end up being annihilated in the name of corporate
privacy - from negative reviews to whistleblowing to basic consumer and
investor disclosure requirements.

Well, it turns out that the Wall government had no interest in addressing that type of concern. And so, Bill 65 has been passed without any change to the bill's new declaration of a corporate privacy right.

In trying to make excuses for its determination to make words mean things they've never meant before, the best the Sask Party could do was to offer reassurances (PDF) that redefining "privacy" under one act wouldn't necessarily spill over into other legislation.

And it's true that the protection of personal information under (for example) the Freedom of Information and Protection of Privacy Act isn't directly changed by the wording of securities legislation. But that's largely because FOIP - rather than relying on the term "privacy" as its basis for protecting information - is instead highly specific in its definition of "personal information".

In contrast, the Privacy Act is deliberately broad in addressing breaches of privacy held by a "person" - a term which by law includes a corporation. And the Wall government's choice to declare the existence of corporate privacy under securities legislation will surely make it easier for corporations to argue that there's some legislative intent to create a cone of silence around corporate activity.

Again, the problem could have been avoided by simply mirroring the wording of FOIP and other statutes which protect genuinely confidential information and trade secrets without decreeing that all corporate activity is presumptively to be hidden from public view.

But the Sask Party has instead chosen to mangle the existing meaning of "privacy" to extend it to corporate interests - even after the issue was raised publicly. And we can only guess what fallout that will produce in the years to come.